INTERNATIONAL JUDICIAL ASSISTANCE AMONG THE AMERICAN STATES-THE INTER-AMERICAN CONVENTIONS

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(\Allot
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bority over foreign corporations
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United States." Importantly, Ike
Ito order compliance by a foreign
government need only show a
succeed in establishing jurisclic...
.3555 (1983).
`41,1i
?
LUCINDA A. Low*
International Judicial Assistance Among
the American States?
the Inter-American Conventions
The work of the Hague Conference on Private International Law in the
area of, international judicial assistance' is familiar. to most international
lawyers.: Less well known is the recent work of the Inter,American States in
the same areal. Two Inter-American Specialized Conferences on Private
International Law held in the 1970's (CIDIP-I and CIDIP-II)2 produced two
*Partner, Sherman & Howard, Denver, Colorado. Member, California, Colorado and
District of Columbia Bars. Prior to joining Sherman &Howard, the author was associated with
a law firm in Washington, D.C., practicing in the international area. In that capacity, she was
involved in preparing drafts of Protocols to the Inter-American Convention on Letters Roga-
tory and the Inter-American Convention on the Taking of Evidence Abroad for presentation
by the U.S. delegation to the second Inter-American Specialized Conference on Private
International Law held in Montevideo, Uruguay in 1979, and served on an Ad Hoc Study
Group formed by the Department of State on that Conference.
'The Hague Conference prepared two conventions in this area to which the United States is
party: (1) the Hague Convention on the Service Abroad of Judicial and Extrajudicial Docu-
ments in Civil or Commercial matters (the "Hague Service Convention"), Nov. 15, 1965, 20
U.S.T. 361, T.I.A.S. 6638, 658 U.N.T.S. 163, to which the United States became party in 1969,
see Fed. R.C.P. 4(i); 28 U.S.C.A. at 73 et seq. (West Supp. 1983); and (2) the Hague
Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the "Hague
Evidence Convention"), opened for signature March 18, 1970,23 U.S.T. 2555, T.I.A.S. No.
7444 to which the United States became party in 1972, see 28 U.S.C.A. ? 1781 (West Supp.
1983). ?
2The Latin American countries have historically been quite active in the area of codification
of private international law. The Bustamante Code on Private International Law (86 L.N.T.S.
111) was drafted in 1928 and ratified by fifteen Latin American states. See K. Nadelmann, The
Need for Revision of the Bustamante Code on Private International Law, 65 Mt. J. INT1 L. 782
(1971). The Montevideo Treaties of 1889 and 1939-40 also dealt with rules of private interna-
tional law. See 37 AM. J. brr'L L. Supp. 95 et seq. (1943). The United States was not a party to
either tbe Code or the Treaties.
In 1965, the Inter-American Council of Jurists recommended convocation of a specialized
conference on private international law to revise and update the Bustamante Code. The
Inter-American Juridical Committee, an organ of the Organization of American States
("OAS"), which acts as an advisory board to the OAS on judicial matters, made similar
705
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706 INTERNATIONAL LAWYER
conventions and a protocol dealing with service of process and other docu-
ments and the taking of evidence abroad?the Inter-American Convention
on Letters Rogatory and an Additional Protocol thereto,' and the Inter-
American Convention on the Taking of Evidence Abroad.? The United
recommendations at its meetings in 1966 and 1968, and in 1971, the General Assembl), of the
OAS approved a resolution convoking CIDIP-I. AG/Res. 48 (V-0/71). CIDIP-I was held in
Panama in January 1975. The United States participated in the conference, which produced six
Inter-American Conventions: The Inter-American Convention on International Commercial
Arbitration (OEA?Ser. A/20 (SEPF)); The Inter-American Convention on Conflict of Laws
Concerning Bills of Exchange, Promissory Notes, and Invoices (OEA/Ser. A/19); The Inter-
American Convention on the Legal Requirements of Powers of Attorney to Be Used Abroad
(OEA/Ser. A/23); and the Conventions on Letters Rogatory and the Taking of Evidence
Abroad, discussed respectively at notes 4 and 5, infra. The United States has since signed but
not ratified the Letters Rogatory Convention and the Convention on International Commercial
Arbitration.
CIDIP-II was convened by resolution of the OAS General Assembly on May 19, 1975
(AG/Res. 187 (V-0/75)) to continue the work of CIDIP-I. It was held in Montevideo,
Uruguay, from April 23-May 8, 1979. The Conference adopted six Conventions: another
Convention on Conflicts of Laws Concerning Checks (OEA/Ser. A/26); a Convention on
Conflicts of Laws Concerning Commercial Companies (OEA/Ser. A/27); a Convention on
Execution of Preventive Measures (OEA/Ser. A/29); a Convention on Proof of and Informa-
tion on Foreign Law (OEA/Ser. A/30); a Convention on General Rules of Private International
Law (OEA/Ser. A/31); and a Convention on Domicile of Natural Persons in Private Interna-
tional Law (OEA/Ser. A/32). The United States has signed none of these to date. The
Conference also adopted an Additional Protocol to the Letters Rogatory Convention, with the
support of the U.S. delegation, which had placed this item on the CIDIP-I1 agenda and
prepared drafts of a Protocol. See Final Act, CIDIP-H/85 rev. 7, May 8, 1979, OEA/Ser. IC/XXI
2, p. 6. The United States subsequently signed this Protocol (see infra note 4). CIDIP-II also
approved a resolution calling for the preparation of studies and proposals on the U.S. proposal
for an Additional Protocol to the Inter-American Evidence Convention. CIDIP-II/Res. VI
(79), Final Act, supra, at 15. The results of these studies and proposals were before the
conference at CIDIP-II1, held in La Paz, Bolivia in May 1984, pursuant to a 1980 resolution of
the OAS General Assembly (AG/Res. 505 (X-0/80)). See infra notes 38, 39.
Most of the OAS Member States, as well as certain countries having observer status to the
OAS (most notably Canada) have sent delegations to the Inter-American Conferences. See A.
Golbert and Y. Nun, Latin American Laws and Institutions, 446, 451 (1982) (discussing
CIDIP-I and CIDIP-II).
'Inter-American Convention on Letters Rogatory [hereinafter cited as the "Letters Roga-
tory Convention" or the "Convention"], signed in Panama on January 30, 1975, at CIDIP-I,
OEA/Ser. A/21 (English), reprinted at 14 I.L.M. 339 (1975); Additional Protocol to the
Inter-American Convention on Letters Rogatory [hereinafter cited as the "Letters Rogatory
Protocol" or the "Protocol"], signed in Montevideo, Uruguay, on May 8, 1979, at CIDIP-II,
OEA/Ser. A/33 (English), reprinted at 18 I.L.M. 1238 (1979). Both the Convention and
Protocol have received the number of ratifications (two) required for them to enter into force:
(Convention, Art. 22; Protocol, Art. 10). The Letters Rogatory Convention has been raticad
by 11 sta es (Chile, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico
anama, Paraguay, Peru, the United States, and Uruguay) and has been Signed but not-ratified
by five others (Bolivia, Brazil, Colombia, Nicaragua, and Venezuela). The Letters Rogatory
Protocol has been ratified by four states (Bolivia, Brazil, Colombia, Nicaragua, and Venezuela)
and has been signed but not ratified by 13 others (Bolivia, Brazil, Colombia, Costa Rica,
Dominican Republic, El Salvador, Guatemala, Haiti, Honduras, Panama, Paraguay, the
United States, and Venezuela). The United States signed both documents in 1980. See 20
I.L.M. 312 (1981).
'Signed in Panama on January 30, 1975, at CIDIP-I, OEA/Ser. A/22 (English), reprinted at
14 I.L.M. 328 (1975) [hereinafter cited as the "Evidence Convention"].
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eice of process and other docu-
;le Inter-American Convention
)tocol thereto,' and the Inter-
vidence Abroad.' The United
' in 1971, the General Assembly of the -
:es. 48 (V-On1). CIDIP-I was held in
in the conference, which produced six
Kvention on International Commercial
Kim Convention on Conflict of Laws
lovoices (OEA/Ser. A/19); The Inter-
gwers of Attorney to Be Used Abroad
*gatory and the Taking of Evidence
the United States has since signed but
nvention on International Commercial
General Assembly on May 19, 1975
1DIP-I. It was held in Montevideo,
ec adopted six Conventions: another
3(OEA/Ser. A/26); a Convention on
(OEA/Ser. A/27); a Convention on
.Convention on Proof of and Informa-
Gene ral Rules of Private International
of Natural Persons in Private Interna-
signed none of these to date. The
ktters Rogatory Convention, with the
it, item on the CIDIP-II agenda and
5nev. 7, May 8,1979, OEA/Ser. K/XXI
toed (see infra note 4). CIDIP-II also
fits and proposals on the U.S. proposal
tlitnce Convention. CIDIP-II/Res. VI
tuties and proposals were before the
/1984, pursuant to a 1980 resolution of
Ske infra notes 38, 39.
unntries having observer status to the
Biter-American Conferences. See A.
tilitiions , 446, 451 (1982) (discussing
nneinafter cited as the "Letters Roga-
tion on January 30, 1975, at CIDIP-I,
9(1975); Additional Protocol to the
batter cited as the "Letters Rogatory
*pay, on May 8, 1979, at CIDIP-II,
iE (1979). Both the Convention and
)ntquired for them to enter into force.
Itratory Convention has been ratified
ihr, Guatemala, Honduras, Mexico,
*and has been signed but not ratified
pit! Venezuela). The Letters Rogatory
tdombia, Nicaragua, and Venezuela)
aria, Brazil, Colombia, Costa Rica,
?lionduras, Panama, Paraguay, the
pad both documents in 1980. See 20
tEA/Ser. A/22 (English), reprinted at
Convention"] . '
International Judicial Assistance 707
States has signed the Letters Rogatory Convention and Protocol,' and they
are expected to be transmitted to the Senate for ratification in the near
future. The Evidence Convention has not yet been signed by the United
States. The third Inter-American Specialized Conference on Private Inter-
national Law (CIDIP-III), which met earlier this year in La Paz, Bolivia,
adopted an additional Protocol to that Convention,6 which may result in
U.S. signature of that Convention as well.
This article will not attempt to analyze either of the Conventions or the
Protocols in detail. Rather, it will provide a brief overview of these docu-
ments, then comment, in the case of the Letters Rogatory Convention and
Protocol, on the reasons for ratification and, in the case of the Evidence
Convention, on the problems with that Convention and the extent to which
they are remedied by the recently adopted Protocol.
I. The Letters Rogatory Convention and Protocol
A. BRIEF OVERVIEW OF THE CONVENTION AND PROTOCOL
The Letters Rogatory Convention and Protocol together create a system
for service of process and other judicial documents among Inter-American
States in several respects similar to that established by the Hague Service
Convention .7
The Convention and Protocol apply to Letters Rogatory whose purpose is
to effect "procedural aets of a merely formal nature, such as service of
'See supra note 2. The United States was not among the original signatories to the Letters
Rogatory Convention. Although the Convention had its supporters in the U.S. bar, see, e.g.,
Carl, Service of Judicial Documents in Latin America, 53 DENV. L. J. 455 (1976), the prevailing
view among academics as well as practitioners was that it was poorly drafted, fraught with
ambiguity, and in general highly inferior to the Hague Service Convention. The Protocol was
the idea of U.S. practitioners, who believed that U.S. participation in an Inter-American
judicial assistance treaty would be desirable and that the Convention's major flaws could be
remedied or at least ameliorated sufficiently to make it acceptable. The U.S. played a major
role in drafting the Protocol, and signed it and the Convention at the same time. Its view,
expressed at CIDIP-II, was that it would not be prepared to ratify the Convention without the
Protocol and would seek a reservation to the effect that the Convention would be applicable
between the United States and only those nations that also adhere to the Protocol. See Report
of the United States Delegation to the Second Inter-American Specialized Conference on
Private International Law, June 11, 1979, p. 12 (available at the Office of International
Conferences, U.S. Department of State); and P. Trooboff, Current Developments: The
Second Inter-American Specialized conference on Private International Law, 73 Ant. J. INrrl L.
704 (1979).
6Additional Protocol to the Inter-American Convention of [sic] the Taking of Evidence
Abroad, DEA/Ser.K/XXI.3, May 21, 1984 (provisional version). The Conference also
? approved an Annex to the Protocol containing a form for letters rogatory and a certificate of
)04 execution. Annex to the Additional Protocol to the Inter-American Convention on the Taking
of Evidence Abroad, 0EA/Ser.K/XXI.3, May 22, 1984.
'See supra note 1.
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708 INTERNATIONAL LAWYER
process, summonses, or subpoenas abroad"8 isstwccon-
'junction with proceedings involvnic.ommexcial" matters.' For
letters rogatory falling within their scope, the Convention and Protocol
delintate_procedures and requirements for the transmission_ancl executign
of letters rogatory, including, by virtue of the Protocol, tl.lf mandatory us e
of three forms: one on which a letter rogatory is prepared; a second on which
'notice of essential information about the proceeding giving rise to the relferi
?ffiatiry i given-twthe receiving party; andrfhird on whic exectiof the
l!!t=ey- is certified by the appropriate authority of the State of
execution.?
transmission is concerned, the Letters Rogatory Convention
offers several options: transmission through judicial channels; transmission
h_cfiplomatiC or_cons_ulat channels; or transmission through a Central
As a practical matter, however, with the important exceptiotiof
border areas (for which the Convention has a special rule having potentially
great utility for U.S. litigants in states bordering on Mexico)," transmission
through the Central Authority or via diplomatic channels will usually be
gLetters Rogatory Convention, Art. 2(a); Protocol, Art. 1. The Convention is limited to
those acts specified in Article 2 and does not apply to "acts involving measures of compulsion"
(e.g., attachment). Convention, Art. 3. Article 2(b) of the Convention provides that, absent a
reservation by a State party, the Convention can be applied to the taking of evidence and the
obtaining of information abroad. Since the taking of evidence is the subject of a separate
Inter-American Convention, Article 2(b) seemed to many to be confusing and undesirable.
The Protocol makes no reference to Article 2(b), but limits its scope to the "procedural acts"
covered by Article 2(a) of the Convention.
'As with the Hague Conventions, there is no definition of "civil or co.min_eccial" in the Letters
Rpyatortion, presumably because the meaning of this term was thought to be so
well-known as to obviate the need for definition. See Report of United States Delegation on
Eleventh Session of Hague Conference on Private International Law, 8 I.L.M. 785,808(1969).
(In fact, experience with the Hague Conventions has shown that there is wide "divergence
among States as to what this term comprises. See Report on the Work of the Special Commis-
sion on the Operation of the Service Convention, 17 I.L.M. 312,317-20(1977).) Under Article
16 of the Convention, States may extend the Convention to criminal and tax matters, "conten-
lious-administrative cases, arbitration, and ot er n`---r'?Mic;-,vithin the jurisdiction of specialized
courts.
,?
'Letters Rogatory Protocol, Art. 3. The forms are similar to the forms used in connection
with the Hague Service Convention.
"Letters Rogatory Convention, Art. 4. Article 2 of the Protocol clarifies that states are
obliged to establish a Central Authority and to inform the OAS General Secretariat of that
authority. Unlike the Hague Service Convention, which permits direct transmission to the
Central Authority of the State of destination, bypassing the Central Authority of the State of
origin, the Letters Rogatory Convention and Protocol contemplate transmission through the
Central Authority of the State of origin. E.g., Protocol, Art. 4. This apparently was the price
for removal of the legalization requirement, discussed at note 14 and accompanying text infra.
Report of the United States Delegation to the Second Inter-American Specialized Conference
on Private International Law, supra note 5, at 9.
Article 7 of the Letters Rogatory Convention provides that:
---"-----XCourts in border areas of the States Parties may directly execute the letters rogatory
contemplated in this Convention and such letters shall not require legalization.
*
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;
" and which are issued in eon:.
or commercial" matters.? Fa
the Convention and Protocol st
lite transmission and execution
Ut Protocol, the mandatory use
'is prepared; a second on whith,
weeding giving rise to the letter
teliird on which execution of the-)
aate authority of the State,tif
: Letters Rogatory Convention
'judicial channels; transmission
-transmission through a Centre
with the important exception of.
aspecial rule having potentially
win on Mexico),12transmissio?
nuatic channels will usually .I;k
?Art. 1. The Convention is lintitea'
Rots involving measures of compulsion,
Convention provides that, absent4
Wiled to the taking of evidence and the
fievidence is the subject of a separate:
away to be confusing and undesirable'.
Snits its scope to the "procedural act?!
moot "civil or commercial" in the Letters
Mgt of this term was thought to be so
Rampart of United States Delegation on '
motional Law, 8 I.L.M. 785,808 (1969).
A
shown that there is wide divergence -..
moon the Work of the Special Commis-
at. 312,317-20(1977).) Under Article
woo criminal and tax matters, "conten-
etv-6 within the jurisdiction of specialized
sitnilar to the forms used in connection
MI the Protocol clarifies that states art,
Ingle OAS General Secretariat of that
Kith permits direct transmission to. the
nig the Central Authority of the Stateof::.
Smontemplate transmission through the'
AL,Art. 4. This apparently was the price
oriole 14 and accompanying text infra.
*nu- American Specialized Conference.%
,
niilles that:
Ty directly execute the letters rogatory
4611: not require legalization.
International Judi icial Assistance 709
preferable to transmission via the judicial channel, since the legalization
requirement is eliminated only in the former two instances."
The documents that must accompany a letter rogatory are specified in the
Convention and Protocol." Some of those documents, in addition to the
letter rogatory, must be translated into the language of the State of the
letter's destination. If those documents or the letter is not translated, that
State is not required to execute the letter."
If requested, a special procedure or additional formalities may be used in
executing a letter, unless such procedure or formalities are contrary to the
law of the State of execution, which law governs generally the manner of
execution."
A letter rogatory that complies with all of the requirements of the Con-
vention and Protocol may still be refused execution if it is deemed contrary
ccgaricEEL_thlic)21 the State oldestination.r And even if a
letter is executed, such execution does not imply a commitnient to recognize
or execute any ensuing judgment."
Costs and expenses payable in connection with a letter rogatory are
"Letters Rogatory Convention, Art. 5(a). The Convention does provide that due legaliza-
tion is "presumed" when a document has been legalized by the competent consular or
diplomatic agent. Id. Even an abbreviated legalization requirement, however, is more onerous
than none at all.
''Letters Rogatory Convention, Art. 8; Protocol, Art. 3. The requisite accompanying docu-
ments include: the complaint; any documents attached thereto; any ruling ordering the issuance
of a letter rogatory; and a form containing "essential information" for the person to be served
or the authority to receive the documents.
"Letters Rogatory Convention, Art. 5; Protocol, Art. 3. The Protocol limits the documents
that must be translated to the complaint, the text of the letter rogatory, and the notice of
essential information. (Since the latter two will be on pretranslated forms, the amount to be
translated will be relatively minor.) The Protocol also clarifies the requirement stated in Article
8, paragraph a of the Convention that the complaint and supporting documents must be
authenticated, by providing that the seal of the judicial or administrative authority issuing the
letter is sufficient authentication. Id.
'Letters Rogatory Convention, Art. 10. The provision for special procedures or additional
formalities is similar to Article 5(b) of the Hague Evidence Convention, which has been
infrequently used. See Horlick, A Practical Guide to Service of United States Process Abroad,14
INT'L LAW. 637, 648 (1980). It does, however, enable U.S. litigants to effect service of process
outside the United States in conformity with any requirements of federal or state laws for
service that may differ from the procedures of the State where service is to be made.
"Letters Rogatory Convention, Art. 17. This provision, standard in virtually all Inter-
American Conventions, is broader than the comparable provision of the Hague Service
Convention, Article 13, which allows a State to refuse a request for service only if it deems that
..\compliance "would infringe its sovereignty or security." Moreover, the Letters Rogatory
Convention does not contain any provision similar to that, also found in Article 13 of the Hague
Service Convention, that a State may not refuse to execute a letter "solely on the ground that,
under its internal law, it claims exclusive jurisdiction over the subject matter of the action or its
internal law would not permit the action upon which the application is based."
"Letters Rogatory Convention, Art. 9. However, service in accordance with the Convention
should greatly reduce if not eliminate the risk that a court of the State of execution would refuse
to recognize or enforce an ensuing judgment on the ground of improper service.
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710 INTERNATIONAL LAWYER
limited to those normally payable under local law for services other than
those of the Central Authority of the State of destination and its judicial or
administrative authorities.'9 The party requesting execution may opt for an
advance payment procedure, devised in the Protocol in order to prevent
delay in execution; or the party may appoint a person in the State 'o
destination who will be responsible for costs.2?
B. BENEFITS TO BE DERIVED FROM
U.S. RATIFICATION OF THE LETTERS
ROGATORY CONVENTION AND PROTOCOL
The Letters Rogatory Convention and Protocol would unquestionably
expedite and facilitate efforts of U.S. litigants to serve process and ?thee'
documents in other Inter-American countries. Instead of being subjected
the vagaries of each country's laws, litigants could simply look to the,
Convention procedures.21 Onerous requirements of legalization and transla
tion would be eliminated or substantially reduced. Transmission would' be
facilitated by the establishment of a Central Authority in each State. The use:
of standardized forms would facilitate preparation of a letter rogatory and
reduce the risk of a letter's being deemed unacceptable. Costs would ber
reduced or even possibly eliminated.
Against these advantages, it could be argued that the Letters Rogatory
Convention, even with the Protocol, is still not as attractive as the Hague
Service Convention. Since no Latin American countrarty_So. the Hague
Convention at present, however, nor is any (or at least any significant
number) likely to become party in the near future, that argument is without
real force. At least for the present, n the alternative is not the Hague
Convention, but no convention at all.
'Letters Rogatory Convention, Art. 12; Protocol, Art. 5. (Compare Hague Service Conven-
tion, Art. 12.) Each State, at the time of its ratification or accession to the Protocol, is to provide
the General Secretariat of the OAS with a schedule of services for which fees may be charged
and the fees therefor. Protocol, Art. 6. States may declare that they will not charge for
execution, on the basis of reciprocity. Id. Art. 7.
2?Protocol, Art. 5.
2'Local law would, of course, still be relevant as to certain issues, e.g., the acceptability of a
"special procedure" (see Convention, Art. 10).
22Article 15 of the Letters Rogatory Convention provides that:
This Convention shall not limit any provisions regarding letters rogatory in bilateral or
multilateral agreements that may have been signed or may be signed in the future by States
Parties. . . .
Thus, the United States could declare upon ratification that, in the event an Inter-American
State became party to the Hague Convention, that Convention, rather than the Inter-American
Convention, would be applicable to matters between the United States and that State falling k"
within the scope of both Conventions.
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xal law for services other than
of destination and its judicial or
esting execution may opt for an
ie Protocol in order to prevent
vint a person in the State of
as.z'
krotocol would unquestionably
tuts to serve process and other
n. Instead of being subjected to
sets could simply look to the
'tins of legalization and transla-
lanced. Transmission would be
%Authority in each State. The use
'ration of a letter rogatory and
unacceptable. Costs would be
;toed that the Letters Rogatory
not as attractive as the Hague
m country is party to the Hague
Ey (or at least any significant
'Kure, that argument is without
alternative is not the Hague
t.5. (Compare Hague Service Conven-
-aiccession to the Protocol, is to provide
cervices for which fees may be charged
&dare that they will not charge for
gain issues, e.g., the acceptability of a
rides that:
ming letters rogatory in bilateral or
may be signed in the future by States
:that, in the event an Inter-American
salon, rather than the Inter-American
c United States and that State falling
International Judicial Assistance 711
II. The Inter-American Convention on the
Taking of Evidence Abroad
A. OVERVIEW OF THE CONVENTION
The Inter-American Convention on the Taking of Evidence Abroad (the
"Evidence Convention") addresses: the means a,nd_proce?Lires for obtain-
-ing_e_y_i_sLei _ice (either testimony or documents) in one State for sils-tiro-
ceedings in another State_ falling within the Convention's ieop-e; the bases
upon whierl a State may refuse to-a-116W-Tvidence to be taken; the availability
osudiperahi ocedures" as cross-examination, preParation tra-verha--
tim transcript, and other matters of great import in common:law proceed-
i but not typical of civil-taw countries; the testimonial privileges that may
be claimed by witnesses; t eability-to testimony; costs and expenses
in ed takicurs____Tilsgimetn-Y-;-and- matters.
Like the Letters Rogatory Convention, the EIence Convention applies
to civil or commercial matters, with states having the option to expand its
c-o?verage-iother types ofirratters? -
,,1:11e-veltidehnse-703-r? -taking evidence by the Convention is, again, ihe
letter rogatory, which must be issued by a judicial authority in the State
where the ra-eeding is pending and addiessed Jo a "competent authority"
in another State. The-tranoni-ssionmptions and legalization requirements
in the Evidence Convention are essentially the same as those contained in
the Letters Rogatory Convention. ? There is no provision, however, like
Article 7 of the Letters Rogatory Convention, permitting direct transmis-
SToriZ__fieffers between border areas.
The general rule under the Convention is that a letter rogatory that is
within the scope of the Convention, that meets the requirements of the
_ Convention so Tar as content and accompanying documentation,"
translation, 13 and legalization are concerned, and that satisfies any financial
'Evidence Convention., Arfs. ii. The matters are the same as provided in the Letters
Rogatory Convention. See supra note 9.
"Evidence Convention, Art. 2. There are, however, no provisions in this Convention
comparable to those in the Hague Evidence Convention for the taking of evidence by consuls or
commissioners. The Evidence Convention does not preclude States from "the continuation of
h more favorable practices" for_taking evidence_ thanare provided in the Convention (Art. 14), so
that stateilhatpefiffirother procedures, e.g., the commission, notice or stipulation procedures
V's contemplated by Rules 28(b) and 29 of the Federal Rules of Civil Procedure, would not be
_precluded from continuing to do so.
"Evidence Convention, ArtsT1-13. See supra notes 11, 13.
'See supra note 12.
'See Evidence Convention, Art. 4.
'Evidence Convention, Art. 10(2), requires translation of the letter rogatory and appended
documentation into the official language of the State of destination.
nld. Art. 10(1). See also supra note 25.
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712 INTERNATIONAL LAWYER
conditions imposed by the State of destinatioe must be executed in accor-
dance with its terms, provided that the procedure requested is
_
_ to legal provisions in the State of destiiiatiOn -that EiFfe-s-sify-probibit it.""
_ _ _ - ? ?
There are two exceptions: (1)1f_the-le4te-c-rog.atopy-is-!Imanifestly---" contrary_
__t9 tl_le_public policy of the State of destination;" and (2) if the purpose of the
-
jgg_o_r? ogp_i
al
g s
the taking of eyidence.j)rior to judicial p_r_oceegingpsetrial.discovery of
documents" as the proceduriii-lariowii m common law countries."
The Evidence Convention calls for the authority of the ta e of destina-
tion to accept additional formalities or special procedures in the taking of
evidence (e.g., administration of an oath, preparation of a verbatim tran-
script, or cross-examination), unless these are "contrary to the laws of the
State of destination or impossible of performance." With respect to tes-
timonial privileges, he Convention provides that a witness may invoke any
privilege available under the aw o the Statemilere_the_evidence is to be
taken, or, if specified in the letter rogatgry_or confirmed b.y_the requesting
t---1-4 -or4ty,-under the law of the Stale _of theittletrogator_yls origin." Finally,
with respect to compulsion, the Convention provides that the authority of
the State of destination "may apply the measures of compulsion provided
for in its law."36
B. COMMENTS ON THE EVIDENCE CONVENTION
The Inter-American Evidence Convention is deficient in a number of
serious respects, particularly when compared with the Hague Evidence
Convention.
Completely lacking is any provisiorking-a-e-vidence by diplomatic officers, consular agents or commissioners? comparable to Chapter II
of the Hague Evidence Convention, even though these procedures are more
expeditious than the letters rogatory procedure. There isno expss obliga-
tion to create a Central Authority. There is no specific provision for par-
ti?counsel, The circumstances under which testimony or docu-
ments may be compelled are ill-defined. The translation requirement is
"Id. Art. 2(2); see also id. Art. 7.
"Id. Art. 2(1).
"Id. Art. 16.
"Id. Art. 9. This provision is similar to Article 23 of the Hague Evidence Convention. Both
reflect civil-law countries' misunderstanding of and hostility to our discovery procedure.
"Id. Art. 6. This is similar to Article 9 of the Hague Evidence Convention.
"Id. Art. 12. Article 11 of the Hague Evidence Convention contains similar provisions, but
also allows States to declare to respect privileges recognized under the laws of third States.
"Id. Art. 3 (emphasis added). Compare Hague Evidence Convention, Art. 10 ("the re-
quested authority shall apply the appropriate measures of compulsion") (emphasis added).
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International Judicial Assistance 713
on" must be executed in accor-
dure requested is not "contrary
na that expressly prohibit it.""
tatory is "manifestly" contrary
p;32and (2) if the purpose of the
=dings or "pretrial discovery of
moon law countries."
abority of the State of destina-
iiil procedures in the taking of
ceparation of a verbatim tran-
ce "contrary to the laws of the
inance."" With respect to tes-
stbat a witness may invoke any
te where the evidence is to be
tr confirmed by the requesting
tier rogatory's origin." Finally,
['provides that the authority of
aEures of compulsion provided
in: is deficient in a number of
red with the Hague Evidence
bx taking of evidence by diplo-
nen, comparable to Chapter II
urgh these procedures are more
are. There is no express obliga-
sno specific provision for par-
der which testimony or docu-
Tie translation requirement is
Itie Hague Evidence Convention. Both
losility to our discovery procedure.
uEvi dence Convention.
untion contains similar provisions, but
*zed under the laws of third States.
iitnce Convention, Art. 10 ("the re-
sof compulsion") (emphasis added).
extensive. Th_ere are no standard forms for letters rogatory. The cost provi-
sions are completely open-ended. Finally, there is the prohibition on pre-
trial discovery which, although paralleling the Hague Convention proviiiorV
is highly unfortunate.
Following the resolution at CIDIP-II," the United States appointed a
group of experts to prepare a draft protocol. The draft prepared by the
Meeting of Experts" addressed all of the foregoing problems. The Inter-
American Juridical Committee approved a subsequent draft on August 21,
1980, for presentation at CIDIP-III." While adopting in haec verba many of
the provisions of the Experts' draft," the Juridical Committee's draft re-
grettably omitted the provisions for the taking of evidence by diplomatic
officers, consuls, or commissioners, and the provision permitting pretrial
discovery."
The Protocol adopted by the CIDIP-III conferees" restores in substance
virtually all of the provisions of the Experts' draft omitted by the Inter-
American Juridical Committee. Articles 9 through 13 of the Protocol pro-
vide for the taking_of_evidence by_diplomatic or consular agents oq_terms_.
similar to those of the same articles of_the_Experts' draft." The major
difference is that the taking of evidence by commissioners?a controversial
subject?is omitted." In addition, in perhaps its most important contribu-
"See supra note 2.
'Draft Additional Protocol to the Inter-American Convention on the Taking of Evidence
Abroad, from the Final Report of the First Meeting of Experts on Private International Law,
held in Washington, D.C., April 9-15, 1980, OAS/Ser. K/XXI.1, RE/DOC/11/80 rev. 1.
"Draft Additional Protocol to the Inter-American Convention on the Taking of Evidence
Abroad approved by CIDIP-I in Panama in 1975, OEA/Ser. K/XXI. 3, CIDIP-111/4, March 11,
1983, at 3.
'Articles 1 and 3-9 of the Juridical Committee's draft are identical to provisions in the
Experts' draft. Article 2 of the Juridical Committee's draft is a modified version of Article 2 of
the Experts' draft. (The modifications are less desirable than the deleted provisions of the
Experts' draft.)
"Articles 9-13 and 15 of the Experts' draft. (Article 14 of the Experts' draft became Article 9
of the Juridical Committee's draft.)
"See supra note 6.
"Diplomatic or consular agents are permitted by these articles to "tak[e] evidence or obtain('
information" both from their own nationals and from host- or third-country nationals (Article
9). However, when evidence is to be taken or information obtained from persons who are not of
the same nationality as the diplomatic or consular agent, the host State may, by declaration,
impose conditions upon, or limit the powers of, the diplomatic or consular agent (Article 10).
The diplomatic or consular agent is entitled to have applied the "appropriate" measures of
compulsion available in the host State upon his request to the competent authorities and
satisfaction of the host-State requirements for the taking of such measures (Article 11). The
same privileges apply to the taking of evidence by diplomatic or consular agents as apply with
letters rogatory (Article 12). Evidence may be taken according to the procedures of the State of
origin, provided that such procedures are not contrary to an express prohibition in the laws of
the State of destination (Article 12). Use of the procedures afforded by these articles does not
preclude later resort to a letter rogatory (Article 13).
"At first blush this would seem to make the Inter-American Convention significantly na
rower than the Hague Convention, which permits the taking of evidence by commissioners.
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714 INTERNATIONAL LAWYER
,_the...Pratocol et in Article 16 standards for the
_letters rogatory that call for the exhibition and copyiif dOciimen
standards imp ici y override the vi ence onvention's prowl).
cle 9 ot?i-TrEffidraikeove-r oriamtment-s.---The'remaining,
the Pfazicol are substantially similar to t ose of the Expe'
American Juridical Committee's drafts.'
With the Protocol and its Annex," the Evidence Conventi-
piffled, ascertainable procedures and forms for taking evid
American countries. Signature and ratification of these iniCtlini
United States in the near future would be a benefit to U:Sr
should be supported.
Because several countries party to the Hague Convention have declared their oppodtkie
use of commissioners in their territory or have imposed restrictions on the use of
ers, the difference is not as great as first appears. For the country declarations, sea, On
following 28 U.S.C.A. ? 1781 (West Supp. 1983). In addition, by virtue of Article 14
Evidence Convention, states that already permit the taking of evidence by corn
permitted to continue to do so, and bilateral or multilateral agreements so permittinslay
entered into. In any event, because commissioners are used far less frequently than
officials, their omission is unlikely to impose any real hardship on U.S. litigants;
"Article 16 of the Protocol establishes three requirements for execution: (1)-"the
proceeding has been initiated:" (2) "the documents are reasonably identified by date,
or other appropriate information," and (3) "the letter rogatory specifies those,
circumstances causing the requesting party reasonably to believe that the requested d.
are
are or were in the possession, control, or custody of, or are known to, the person from *bo
documents are requested."
The article allows the person from whom the documents are requested to object
production or deny that they are within his possession, control or custody. Finally, it
that a State ratifying the Protocol may declare that it will execute letters rogatory falling
this Article only if "they identify the relationship between the evidence or inform*
quested and the pending proceeding."
This provision represents a balanced solution to the problem created by the neea Of.,
litigants to obtain documents located in foreign countries and those countries' legitimate
to avoid fishing expeditions on their soil.
"Ilere are language changes throughout the draft, as well as several new articles(
14, 17, and .19) dealing with reservations, expansion of the scope of the Convention
declaration to include criminal or other matters, and interpretation of the Protocol to
?frif '
ment the Convention.
"See supra note 6.
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222 INTERNATIONAL LAWYER
U.S. v. Sindona,181 a request for assistance under the treaty with Switzer-
land was made by the defense and the court ordered that it should be
complied with or the case would be dismissed. The Department of Justice
complied with the request.
IV. Conclusion
The U.S. treaties on mutual assistance in criminal matters represent a step
forward in international relations in that they offer rules and procedures that
greatly simplify previous practices and offer an alternative to questionable
techniques such as the kidnapping of information in foreign countries and
attempting to enforce U.S. subpoenas in foreign jurisdictions. Given this
fact, the treaties would seem to have a bright future; indeed, negotiations
are currently underway with Jamaica, Canada, Belgium, West Germany,
the Bahamas, the Cayman Islands, and Thailand regarding the conclusion of
similar agreements.182 Their continuing proliferation would seem to assure
that the concerns of Dr. Gerhard Mueller expressed over twenty years ago
that "American courts neither give nor receive (nor ask for) adequate
judicial assistance in criminal matters" 83 will at last be addressed.'84
The chief concern of the authors is the possible use of the treaties to
circumvent U.S. due process guarantees,185 the lack of access to the treaty
181. U.S. v. Sindona, 636 F.2d at 892 (2d Cir. 1980); see also Kenney, Structures and
Methods of International and Regional Cooperation in Penal Matters, 29 N.Y. LAW SCHOOL L.
REV. 65 (1984).
182. See Chamblee supra note 32, at 223; see also Bahamas Sets Talks on Secrecy, JOURN. OF
COMM., December 22, 1983.
183. Mueller, supra note 12, at 197.
r----- 184. International judicial assistance in civil matters is also becoming more commonplace.
See Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters ("Hague Service Convention"), done at The Hague November 15, 1965,
entered into force for the United States February 10, 1969,20 U.S.T. 361, T.I.A.S. 6638, 658
U.N.T.S. 163; Convention on the Taking of Evidence Abroad in Civil or Commercial Matters,
done at The Hague March 18, 1970, entered into force for the United States October 7, 1972,23
U.S.T. 2555, T.I.A.S. 7444. These Conventions also allow procedures to be followed under the
terms of the Conventions rather than utilizing the provisions of 28 U.S.C. ? 1781 and 28 U.S.C.
? 1782, respectively. On June 25, 1984, President Reagan transmitted the Inter-American
Convention on Letters Rogatory to the Senate for its advice and consent. Inter-American
Convention on Letters Rogatory, With Protocol, Senate Treaty Document 98-27, 98th Cong.,
2nd Sess., 1984. When ratified, the Convention will establish a level of international judicial
cooperation in civil and commercial proceedings among contracting states of the Organization
of American States (OAS) analogous to that which now exists among contracting States to the
Hague Service Convention, which has only been ratified by one other OAS state in addition to
the United States. Id. at I.
For a summary of U.S. procedures involving the Justice Department with respect to execu-
tion of foreign requestsiegarding,commercial and civil matters, see Weiner, In Search of
International Evidence: A Lawyer's Guide Tcrougl the U.rDeliaMtia of Justice, 58 NOTRE
DAME LAW REV. 60 (1982).
185. A treaty which conflicts with constitutional rights is invalid. Reid v. Covert, 354 U.S. 1
(1957).
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